Elder Law Newsletter

  • Age Discrimination Under the ADEA
    In 1967, Congress passed the Age Discrimination in Employment Act (ADEA). Goals of the ADEA include:Promotion of employment of older persons based on their abilities rather than age.Prohibition of... Read more.
  • Retirement Benefit Distribution Upon Divorce
    Upon divorce, all debts, property and assets must be divided between the spouses according to applicable percentages set by state law. In equitable distribution states, the court divides marital property (or property acquired during the... Read more.
  • Disproving Employer Justification for Termination
    According to a 2000 U.S. Supreme Court decision, Reeves v. Sanderson Plumbing Products, Inc., an employee may have a right to a jury trial based on discrimination even where no direct evidence of discrimination is offered. The... Read more.
  • Elder Abuse Law – An Overview
    In general, the broad term “elder abuse” is used to encompass several forms of misconduct directed toward individuals aged 60 or older. Elder abuse is considered to be a serious problem in the United States by the... Read more.
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Use of Feeding Assistants in Nursing Homes

Nursing homes are heavily regulated by federal, state and local laws. Most nursing homes receive federal funds through Medicare or Medicaid and must therefore comply with the provisions of the federal Nursing Home Reform Act of 1987. The Act sets forth requirements for the minimum amount of time that must be devoted to each resident by qualified professionals. However, nursing homes have faced staff shortages leading to the possibility of improper care and/or endangerment of residents. One solution has been to relax training requirements for “assistants” to perform certain tasks such as feeding nursing home residents.
 
Federal Regulation of Nursing Homes
A 1986 study of nursing homes conducted by the Institute of Medicine found that nursing home residents were inadequately cared for, abused and neglected. In an effort to address these problems, Congress passed the federal Nursing Home Reform Act of 1987. The Act was designed to ensure that nursing home residents received quality care by properly qualified caregivers.
 
In addition to providing a Residents' Bill of Rights, the Act sets out requirements and procedures for training nurse's aides and evaluating their competency. Generally, in order to qualify, all direct-care employees in nursing homes must either be licensed health professionals or complete 75 hours of training and undergo competency testing. Such training is intended to develop basic nursing/health care skills, as well as personal care and communication skills. However, there has been a shortage of both licensed professionals and qualified nurse's aides.
 
Federal Authorization of Relaxed Training Requirements
To address the labor shortage in nursing homes, the Centers for Medicare and Medicaid Service (CMS) passed regulations which have relaxed the training requirements and procedures for certain employees. In particular, regulations passed in 2003 allowed nursing homes to use “feeding assistants” to lighten the workload of other qualified staff members, allowing them to focus instead on more serious areas of care.
 
“Feeding Assistants” in Nursing Homes
One result of the staff shortage was in increase in complaints of resident malnutrition and dehydration. In turn, these complaints prompted the use of feeding assistants in at least two states, Wisconsin and North Dakota. Thereafter, CMS passed the feeding assistant regulations. Feeding assistants are typically part-time workers, including students, retirees or housewives, and are paid minimum wage. While feeding assistants may also be trained employees of the nursing home, they are only required to meet minimal requirements under the 2003 federal regulations.
 
Federal requirements for the use of feeding assistants include:
  • Successful completion of an eight-hour state-approved training course
  • Feeding assistants are not authorized to feed residents who have difficulty swallowing or other feeding issues
  • Selection of residents to be fed by assistants must be conducted by a professional nursing staff
  • Feeding assistants must work under the supervision of a registered nurse or licensed practical nurse
The use of feeding assistants in nursing homes has sparked mass criticism among several elder law advocate groups.
 
Criticism of the Feeding Assistant Regulations
The 2003 regulations were opposed by several influential advocate groups for the elderly, such as AARP (formerly American Association of Retired Persons). These groups believe that the relaxed requirements will not solve the problem of care in nursing homes. Rather, they fear that there may be adverse effects from allowing persons with limited training and experience to provide care for the elderly.
 
Critics note that feeding in a nursing facility is not as simple as putting a spoon in a resident's mouth; choking and aspiration are potential dangers, and proper positioning of the resident is crucial. As predicted, since its inception, the federal authorization of using feeding assistants in nursing homes has been challenged in court.
 
Challenge to the Validity of the Feeding Assistant Regulations
A lawsuit challenging the feeding assistant regulations was filed in Seattle, Washington in July 2004. The suit entitled, Resident Councils of Washington v. Thompson alleged that the new regulations were invalid under provisions of the Nursing Home Reform Act requiring that nursing or “nursing-related” services are provided by “health care professionals” or a properly trained and certified nurse's aide. The nursing home residents and organizations which filed the lawsuit sought to represent a national class of residents who could be harmed by the feeding assistant regulations. The complaint was amended in October 2004 to include additional plaintiffs in Michigan and an answer responding to the complaint was filed. Finally, in 2007 a court of appeals ruled in favor of the government, holding that the language of the statute requiring services to be provided by “health care professionals” was sufficiently ambiguous to allow for the DHHS regulations authorizing feeding assistants.